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[2014] ZAGPPHC 209
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Optico (Pty) Limited v Te Groen and Another (215/2013) [2014] ZAGPPHC 209 (24 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 215/2013
24
MARCH 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
OPTICO
(PTY) LIMITED
…………………………………………………
.
Applicant
and
MARTHIINUS
JOHANNES TE GROEN
…………………………
.
First
Respondent
CITY
OF
TSHWANE
……………………………………………
.
Second
Respondent
JUDGMENT
Tuchten
J:
1
Mrs van der Merwe, the owner of the applicant and the wife of the
first respondent are competitors in the baby creche industry.
The
parties and their some of their family members attend the same
church. The applicant moved into premises in Tweefontein, Pretoria
and towards the end of January 2013, employees of the second
respondent (“the City”) connected these premises to a
water supply pipe running past them. But the water supply pipe was
not under the control of the City.
It
belongs to or is under the control of a company called Shere
Waterwerke. Shere supplies water to persons to whom it is
contractually
obliged to do so. The procedure is that a prospective
cpnsumer applies to Shere for permission to connect and if the
application
is approved, Shere provides the consumer with water.
2
The first
respondent was a director of Shere. On 11 February 2013, the first
respondent was travelling past the premises. He saw
the connection.
He made enquiries and came to the conclusion, correctly, that the
connection had been effected without the necessary
permission from
Shere. He then proceeded to instruct an employee of Shere to remove
the connection by closing the valve and physically
removing the
connection, after which he and one of his co-directors laid a charge
with the police. Throughout, the first respondent
intended to protect
the interests of Shere.
3
Indeed, his
allegation that he in fact acted on behalf of Shere was not
challenged or disputed by the applicant. Nor is the allegation
that
he consulted with and reported to his co-directors on what he had
done. There is no suggestion that at that time Shere repudiated
the
actions of the first respondent.
4
It seems that
the first respondent left one or more workers to remove the
connection because members of the management of the creche
s|aw the a
worker digging in the vicinity of the connection and found out that
he had removed the connection on the instructions
of the first
respondent. But for reasons which were not explained, nobody on
behalf of the applicant contacted the second respondent
either to
protest or discuss the matter. Instead the applicant simply got a
plumber to restore the water supply to Shere’s
pipeline.
5
During the
early evening of the same day, the second respondent was once again
travelling past the premises. He noticed that connection
to Shere’s
pipe had once again been effected. But this time the connection had
been concreted in. Mindful that the concrete
would harden, he and
Shere’s employees immediately opened up the connection and once
again disconnected the water supply
to the applicant’s
premises.
6
Early the next
morning, the second respondent once again drove past the premises.
There he found some workmen digging around the
site of the connection
he had caused to be removed. He told them to stop and they obeyed.
The second respondent then went to the
premises to find out who was
responsible for what he regarded as the violation of Shere’s
rights and property. He encountered
a Mrs Andrejevic. A
heated argument ensued. Mrs
van der Merwe, followed by Mrs Koster, another employee of the
applicant arrived on the scene. I have
little doubt that voices were
raised, in my view by all concerned. The argument was not restricted
to the legitimacy of the connection
to and the disconnection from the
water supply but became personal.
7
An
unidentified passing motorist was so concerned by the ferocity of the
argument that he stopped. Assuming that the three ladies
might be in
some danger, he gallantly asked them if they needed his help. They
said they did not. It is relevant to what followed
that no charge was
laid with the police against the second respondent.
8
Instead, by
notice of motion dated 15 February 2013, and on very short notice to
the respondents, the applicant went to court for
an order
interdicting the first respondent from coming within 100 metres of
the premises, contacting intimidating or threatening
any employee of
the applicant, interfering or involving himself with the business of
the applicant, ordering the first respondent
to restore the water
supply to the premises and prohibiting the first respondent from
interfering with that water supply.
9
The matter
came before Pretorius J. The second respondent was represented by
counsel. The learned judge granted interim relief in
all the respects
I have mentioned in the form of a rule nisi
to operate
immediately. This is the extended return day of that rule. The second
respondent abides but the first respondent opposes
confirmation of
the rule.
10
As a result of
the present case, Shere disassociated itself from the fifst
respondent. He resigned as a director of Shere. I have
pointed o|ut
that subjectively the first respondent acted as he did to advance
tile interests of Shere. I find it surprising that
the first
respondent did not before he summarily disconnected the water supply,
make enquiries. There was a meter within the connection.
There would
not have been a meter unless the consumer of the water wished her
cbnsumption to be measured, obviously for payment
in due course, the
first respondent ought to have realised that there had been a
misunderstanding. I find equally surprising that
Mrs van der Merwe
did not, once she heard that the water supply had been disconnected
at the instance of the second respondent,
did not contact him to
discuss the matter and find out why he was acting as he did.
11
The
relief sought before me falls essentially into two categories:
firstly,
to
prevent violation of the rights of personality of the applicant’s
employees
[1]
; secondly to
prevent a further spoliation of the applicant’s water supply.
12
As
to the first category of relief: I think that the case for the
applicants, that the three ladies were terrified by the violent
shouting of the first respondent, is overstated. The applicant seeks
final relief in this regard. The Plascon-Evans
rule
applies. The First respondent denies violent behaviour. As I have
said, I am sure that the participants in the argument shouted
at each
other. But they did not try to run away from the first respondent or
call the police or even report the matter to the p|olice.
And most
telling in this regard, the employees of the applicant did not tell
the kindly motorist who stopped to provide assistance
that thev
feared for their bodily or emotional integrity. I conclude that in
the shouting match, the applicant’s employees
probably gave as
good as they got. I think it likely that friction between the various
parties arising from their competing commercial
interests played a
part in the applicant’s decision to seek personality relief.
13It
follows from this conclusion that none of the relief which falls into
the first category should be granted.
14
Counsel for
the first respondent presented a well-constructed argument in answer
to the spoliation claim. The contention is that
the acts
of connection to
Shere’s pipeline spoliated Shere of its water, while counsel
recognised that the disconnections were acts
of spoliation by the
first respondent, the submission was that the first respondent had,
acting in his capacity as a director of
Shere, engaged in acts of
counter-spoliation consequent upon the spoliation constituted by the
connections. That the self-help
complained of constituted an act of
counter-spoliation carried out swiftly after an earlier act of
spoliation can constitute a
defence to a claim for spoliatory relief
The problem is that this defence was never raised by the first
respondent in his papers.
15
In
Mthimkulu and Another
v
Mahomed and Others,
[2]
a
full bench of this division considered whether it had been
appropriate for a single judge to reach a conclusion on the case by
invoking the principle of counterspoliation where this question
had not been raised or addressed by the parties and where
the trial
judge had not put the proposition to
counsel
for the parties for consideration. The full bench came to the
cbnclusion that it was not.
16
In the
present case, counsel for the applicant submitted that if the defence
of counter-spoliation had been raised, as it should
have been, on the
first respondent’s papers, the applicant might well have
investigated the first respondent’s allegations
that he had
acted on behalf of Shere particularly in the light of the fact that
Shere had apparently repudiated the first respondent’s
actions.
I find merit in this submission. I am fortified by the reasoning in
Mthimkulu, supra.
17
In
Bosman
NO
v
Tworeck
en Andere
,
[3]
the
court considered the case of a respondent, whose right of way over a
road had been spoliated by the locking of a gate over the
road, who
had used self-help to restore his right of way by removing the entire
gate rather than merely removing the locking mechanism.
In those
circumstances, the court found, the respondent had exceeded the
permissible bounds of counter-spoliation. I think that
if proper
notice of the defence had been given, the applicant and its lawyers
might well have given consideration to the question
whether the first
respondent should not, if he were engaged in an act of
counter-spoliation, have confined
himself
to closing the valve that controlled the water supply rather than
remove the entire connection.
18
I conclude,
therefore, that the defence of counter-spoliation should not on these
papers be sustained. The question remains whether
any final relief at
all should be granted. In my view, while the applicant was fully
justified in approaching the court urgently
to protect its water
supply, there is not the slightest risk that the first respondent
will ever again spoliate the applicant’s
water supply. He did
so because of his association with Shere. That association has been
terminated. I see no need to confirm the
rule in this regard.
19
The question
of costs remains for decision. Both parties have enjoyed a measure of
success, the first respondent in relation to
the personality relief
and the applicant relation to the spoliatory relief. I think that
each party should pay their own costs.
20
I make the
following order:
1
The rule is
discharged;
2
There will be
no order as to costs.
NB
Tuchten Judge of the High Court
19
March 2014
[1]
It was not argued that the applicant did not have standing to
protect these rights of its employees
[2]
2011 6 SA 147
GSJ para 6
[3]
2000 3 SA 590
C